Outstanding e-toll debt has begun to prescribe as three years have passed since the controversial system became operational, the South African National Roads Agency (Sanral) confirmed.
This means that unless road users were summoned or formally acknowledged the debt, they would be able to defend efforts by Sanral to recover the money by raising prescription as a defence in court.
Road users at the end of September owed Sanral R6.2 billion in unpaid e-tolls, Sanral said.
With every day that passes, the outstanding e-toll debt incurred on the same day three years ago, would qualify for prescription.
Sanral told Moneyweb “Conservatively speaking, the civil claim of unpaid tolls does expire after three years unless prescription is halted. It is important to note that prescription is a defence that the debtor must raise and a court is not allowed to mero moto (out of own motion) take note of prescription.”
Sanral told Moneyweb it has so far “prepared 6 286 summonses” to be served by the Sheriff to road users. These summonses represent R575 million of outstanding toll fees. This, it says, is the first step to recover the total outstanding R6.2 billion.
It is not clear how many of these summonses have in fact been served.
The roads agency however says that non-payment of toll is both a criminal and civil offence in terms of the Sanral Act. Since criminal offences only prescribe after 20 years, the outstanding amounts are still recoverable, it maintains.
Sanral would therefore not quantify the financial risk posed by prescription.
Organisation Undoing Tax Abuse (Outa) chairman Wayne Duvenhage is however very sceptical about Sanral’s chances of success with criminal prosecution and asks how that will assist it in collecting the outstanding amounts.
He points out that transport minister Dipuo Peters earlier gave an undertaking that road users won’t be criminalised as a result of failing to pay e-tolls.
He further criticises Sanral’s reporting of outstanding e-tolls in its annual financial statements for 2015/16. “The most alarming aspect of Sanral’s 2016 financial statements is the increase in trade receivables from R1.15 billion in 2014 to R4.96 billion in 2015 and R7.66 billion in 2016. Sanral clearly continues to count unpaid e-tolls as an asset on its balance sheet, when all indications point to virtually no hope of recovering this money,” Duvenhage says.
Duvenhage says only one in five users pay for the use of Gauteng’s freeways and 2.9 million unique road users are in default. Nevertheless “there appears to be no acknowledgement in Sanral’s annual report that the scheme has largely failed in achieving its aim to repay the debt borrowed for the upgrade”.
This comes as the Less 60% campaign aimed at encouraging motorists to pay their historic e-toll debts rendered only R146 million in discounted total payments so far and payment agreements for a further R123 million.
Since the campaign ended in May Sanral’s income from e-tolls has varied between R61 million and R71 million against a forecast of R101 million. The forecast was revised in May 2016. This is an under-recovery of between 29% and 39%.
Nevertheless investors showed considerable appetite at Sanral’s last debt auction in September when the R500 million requirement was more than three times oversubscribed with bids totalling R1.7 billion.
“Our going concern is intact and we have sufficient cash to meet our obligation for this year and the next,” Sanral told Moneyweb.